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1898 


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Citizen's   associf^tlon  of 

Chicago, 

Digest  of  the  civil  ser 
vice  law  decision 


DIGEST         a^ 


OF  THE 


CIVIL  SERVICE  LAW  DECISION 


AND 


STATEMENT  OF  THE  ORIGIN  OF  THE 
LITIGATION 


CITIZENS'  ASSOCIATION 

OF 

CHICAGO 


1898 


CITIZENS'  ASSOCIATION  OF  CHICAGO. 


OFFICERS— 1898. 


/-r 


:m 


R.   J.   SMITH,  President. 

R.   E.   JENKINS,   Vice-President. 

JOHN  C.   BLACK,  Treasurer. 

J.   C.   AMBLER,  Secretary. 


EXECUTIVE  COMMITTEE. 


r 


R.   .1.   Smith, 
R.   E.  Jenkixs, 
JosiAii  L.   Lombard, 
Melville  E.   Stoxe, 
MuRRY  Nelson, 
Francis  B.   Peaijodv, 
E.    FLETCriER   In(;\ls, 


W.  J.   Chalmers, 
J.   Harley  Bradley, 
H.   H.   Kohlsaat, 
Wm.   a.   Fuller, 
Bryan  Lathrop, 
Jl^lius   Stern, 
Christoph  Hotz. 


ROOMS  33  MERCHANTS'  BUILDING. 
Office  Hours:  -         .         .         .         .  9  ,v.  m.  to  5  p.  m. 

TELEPHONE,   MAIN    1313. 


Digitized  by  the  Internet  Arciiive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/digestofcivilserOOciti 


STATEMENT. 


At  the  instance  of  the  Citizens'  Association  two  petitions 
were  filed  at  the  June  term,  1897,  of  the  Supreme  Court  of 
Illinois,  praying  mandamus  against  Joseph  Kipley,  Superin- 
tendent of  Police  of  Chicago,  and  Adolph  Kraus,  Dudley  Win- 
ston and  Hempstead  Washburne,  Civil  Service  Commissioners 
of  that  city,  in  the  one  case,  and  against  the  said  Civil  Service 
Commissioners  alone,  in  the  other. 

These  suits  were  the  culmination  of  the  struggle  for  the 
enforcement  of  the  new  Civil  Service  Act  in  the  City  of 
Chicago,  which  had  been  going  on  since  the  inauguration  of 
Mayor  Harrison  in  April,  1897. 

Among  the  first  official  acts  of  Mr.  Harrison  was  to  create 
a  vacancy  in  the  commission  by  promoting  Mr.  Waller,  the 
sole  Democratic  member,  to  the  office  of  City  Comptroller,  and 
to  remove  on  wholly  unfounded  charges  of  incompetency  and 
neglect  of  duty,  the  other  members,  Messrs.  Clark  and  Hotz. 
A  new  Commission  was  appointed  consisting  of  Messrs.  Kraus, 
Winston  and  Washburne. 

On  A[)ril  19th,  witliin  tlireo  days  after  the  iiiuuguration  of 
the  Mayor,  Mr.  Thornton,  the  new  Corporation  Counsel,  the 
personal  apitointci-  of  the  Mayor,  reversed  the  ruling  of  iiis 
p7"edeceHHor,  and  aiinouncfd  in  a  written  opinion,  requested  of 
him  ])y  tlif    Mayor,  that    the    i'ollowing    naint'd    positions  W(^i»' 


6 

not  within  the  operation  of  the  Civil  Service  Act:  The  Secre- 
taries to  the  Commissioner  of  Public  Works,  to  the  Superin- 
tendent of  Police,  of  the  Department  of  Police,  to  the  Com- 
missioner of  Buildings,  of  the  Fire  Department  and  of  the 
Commissioner  of  Health  ;  the  Superintendent  of  Streets,  of 
Water,  of  Sewage,  of  Special  assessments,  of  Maps,  of  Milk 
and  Food  Division,  of  City  Telegraph,  and  of  Isolation  Hos- 
pital ;  the  Assistant  Superintendent  of  Police  and  of  the  Milk 
and  Food  Division;  City  Engineer;  Assistant  Commissioner 
of  Health;  Deputy  Commissioner  of  Buildings ;  First  Assistant 
Fire  Marshal;  Fire  Inspector;  Veterinary  Surgeon;  Chief  of 
Division  of  Sanitary  Inspection;  Chief  of  Bureau  of  Smoke 
Inspection;  Register  of  Vital  Statistics;  Chief  of  Division  of 
Contagious  Diseases:  the  four  Inspectors  and  the  fifteen 
Captains  of  Police. 

The  theory  upon  which  this  opinion  was  constructed  was 
that  the  positions  named  were  "  heads  of  principal  depai't- 
ments"  of  the  city,  as  that  phrase  was  used  in  Section  11  of 
the  Civil  Service  Act,  and  were  thus  exempted  from  classifi- 
cation. 

The  Corporation  Counsel  publicly  opposed  the  Merit 
System,  and  openly  announced  his  opinion  that  the  Civil 
Service  Act  was  unconstitutional  and  void.  The  new  Civil 
Service  Commissioners  took  a  more  conservative  stand,  but  it 
was  generally  believed  they  would  endeavor  to  meet  the  views 
of  the  Mayor  and  extend  the  unclassified  list.  One  of  them 
Mr.  Winston,  on  April  23,  was  reported  as  having  announced 
his  concurrence  in  the  opinion  of  the  Corporation  Counsel. 

A  large  majority  of  the  City  Council  was  clamorously 
against  the  Merit  system,  and  it  was  apparent  that  that  body 


;nrould  do  all  in  its  power,  as  subsequent  events  proved,  to 
destroy  the  law. 

Under  these  circumstances,  the  Citizens'  Association 
sought  the  advice  of  counsel  for  a  construction  of  the  law  and 
determined  to  appeal,  if  possible  or  advisable,  to  the  courts. 

There  had  been  some  suggestions,  emanating  fi-om  the 
Mayor  and  the  Civil  Service  Commissioners,  relative  to  a  test 
case  to  secure  judicial  interpretation  of  the  meaning  of  the 
phrase  "  heads  of  any  principal  department,"  and  having  this 
fact  in  mind  the  senior  counsel  of  the  Association  called  on  Mr. 
Kraus,  President  of  the  Civil  Service  Commission,  and  offered, 
without  cost  to  the  City  or  the  Commissioners,  to  aid  in  bring- 
ing the  matter  before  the  Courts.  The  offer  was  peremptorily 
rejected. 

The  situation  was  grave;  the  difficulties  in  the  way  of  a 
suit  were  serious;  nice  discrimination  and  sound  judgment 
were  demanded  for  the  occasion.  After  mature  deliberation  it 
was  determined  to  seek  Mr.  Edward  C.  Akin,  the  Attorney 
General,  and  request  tliat  he  lend  his  liame  for  the  bringing 
of  original  suits  in  mandamus  in  the  Supreme  Court.  Too 
much  credit  cannot  be  given  tliat  officer  for  his  course  at  this 
juncture.  After  a  full  explanation,  he  heartily  concurred  with 
Counsel  for  the  Citizens'  Association;  and  to  his  timely  coun- 
tenance and  co-operation  tlie  ultimate  success  was  hugely  due. 

On  the  same  day  that  the  notice  of  the  intention  to  apply 
for  writs  of  mandamus  was  served  on  the  Civil  Service  Com- 
missioners and  the  Superintendent  of  Police,  the  Commis- 
sioners delivered  an  o[)inion  exempting  precisely  the  same 
positions  from  the  operation  of  tlif^  Civil  Service  Act  as  were 
souglit  to  be  exempted  by   the  ('((tixinition  (JouiiKel,  save  (niiy 


the  Captains  of  Police.  Thus  were  the  fears  of  the  Citizens' 
Association  justified. 

Of  the  two  petitions  filed  in  the  Supreme  Court  the  first 
was  directed  against  Chief  of  Police  Kipley  and  the  Civil  Ser- 
vice Commission,  and  charged  that  the  former  was  assuming 
to  create  vacancies  in  the  positions  of  Assistant  Chief,  Inspec- 
tors and  Captains  and  fill  the  same  with  appointees  of  his  own 
choosing,  in  violation  of  the  Civil  Service  Act.  The  petitioner 
prayed  that  the  Chief  be  compelled  to  certify  vacancies  in  those 
positions  to  the  Civil  Service  Commissioners,  and  that  the 
Commissioners  be  required  to  submit  the  names  of  eligibles  to 
fill  such  vacancies. 

To  this  petition  Chief  Kipley,  through  Corporation  Coun- 
sel Thornton,  made  answer  that  the  whole  law  was  unconstitu- 
tional; but  if  constitutional  insisted  that  under  its  terms  the 
Chief  had  the  right  to  create  vacancies  in  the  positions  named 
and  fill  the  same,  because  such  positions  were  within  the  mean- 
ing of  Section  11  of  the  act  exempting  "  heads  of  any  principal 
department"  from  its  operation.  The  Commissioners  adopted 
all  of  the  answer  of  the  Corporation  Counsel  except  as  to  the 
alleged  unconstitutionality  of  the  law,  and  set  up  numerous 
technical  objections  to  the  form  of  the  petition. 

The  second  petition  alleged  that  the  Commissioners  had 
promulgated  an  opinion  (identical  with  Thornton's  save  as  to 
police  captains),  in  which  they  held  numerous  positions 
(naming  them)  exempt  from  the  operation  of  the  act,  and 
prayed  that  they  be  compelled  to  classify  the  same  and  bring 
th«m  within  its  terms. 

The  Commissioners  made  answer  attacking,  with  technical 
objections,  the  form  of  the  petition  as  in  the  Kipley  case,  and 


also  alleged  that  the  positions  uamed  were  not  within  tlie 
meaning  of  the  Act  and  not  required  by  its  terms  to  be  classi- 
fied. The  answers  of  the  Commissioners  were  signed  by  T. 
A.  Moran,  John  W.  Ela  and  Levy  Mayer,  attorneys  foi-  the 
defendants. 

Afterwards,  in  the  Kipley  case,  a  plea  ji'iis  darrein  contin- 
uance was  filed  setting  up  as  a  further  defense  thfe  so-called 
Powers'  ordinance.  This  was  an  ordinance  introduced  by 
Alderman  Powers,  passed  by  the  Council,  and  approved  June 
28,  by  the  Mayor.  It  attempted  to  exempt,  by  designating 
them  heads  of  principal  departments,  all  the  positions  named 
in  the  opinions  of  the  Commissioners  and  of  the  Corporation 
Counsel,  and  sundry  other  subordinate  positions.  This  plea 
raised  the  whole  question  of  the  power  of  the  City  Council 
to  nullify,  by  ordinance,  the  provisions  of  the  Civil  Service  Act. 

Demurrers  were  filed  by  the  petitioner  to  all  the  answers 
and  to  the  plea  and  the  casers  went  over  to  the  October  Term 
of  the  Supreme  Court. 

When  they  were  reached  in  October,  Mr.  John  W.  Ela  and 
Mr.  Levy  Mayer  appeared  for  the  Commissioners  and  the 
Corporation  Counsel  for  Chief  Kipley.  In  the  argument,  Mr. 
Thornton  insisted  that  the  Merit  System  was  a  failure,  gov- 
ernment under  it  impossible,  and  that  the  whole  law  was 
unconstitutional;  or,  if  tin*  Court  should  not  iiold  that  viiw. 
then  that  the  Powers  ordinance  was  operative,  and  the  posi- 
tions thei-ein  named  were  thereby  taken  out  of  the  classified 
service. 

Mr.  Mayer  confincul  hiinsf^lf  |irin('i|ially  to  an  attack  u|ion 
the  form  of  the  proc.ciMlini,^  and  urged  the  Court  to  tlut>\v  tiie 
cases  out  for  allcgcil     iiifoi'mulit  ies.       Mr.    I'ila    loiiicd  with  him 


10 

in  this  argument  and  besides  insisted  upon  the  construction  of 
the  meaning  of  "heads  of  any  principal  department"  as  set 
forth  in  the  Commissioners'  opinion  of  May  22,  and  in  tha 
opinion  of  Mr.  Thornton  of  April  19,  except  as  to  police  cap- 
tains. He  also  had  something  to  say  as  to  the  illegality  of  the 
Powers'  ordinance.  Both  gentlemen  argued  for  the  constitu- 
tionality of  the  Act. 

The  Citizens'  Association  was  represented  by  Messrs. 
Smith,  Blair  &  Smith,  Mr.  E.  B.  Smith  and  Mr.  Murry  Nel- 
son, Jr. 

The  essential  points  in  the  case  were:  First,  the  suffi- 
ciency, in  matter  of  form,  of  the  petitioner's  pleadings;  second, 
the  validity  of  the  exemptions  claimed  by  the  opinions  of  the 
Commissioners  and  Mr.  Thornton;  and  third,  the  legality  o£ 
the  Powers'  ordinance. 

On  the  first  two,  Messrs.  Ela  and  Mayer  strenuously 
opposed  the  Attorney-General  and  the  attorneys  of  the  Citi- 
zens' Association. 

On  the  22d  day  of  December  the  opinions  of  the  Supreme 
Court  were  handed  down. 

They  were  written  by  Mr.  Justice  Magruder  and  are 
sweeping  in  character. 

The  evils  of  the  spoils  system  are  enumerated  ;  the  famous 
aphorism  of  Marcy  that  "  to  the  victor  belongs  the  spoils"  is 
called  a  "semi-barbarous  maxim"  ;  and  it  is  declared  that 
the  Legislature  of  Illinois  passed  our  Civil  Service  Act  in  ordei* 
to  "  do  away  with  the  onerous  burden  of  the  curse  "  of  the 
spoils  system. 

Passing  to  the  objections  of   the  Corporation   Counsel  to- 


11 

the  constitutionality  of  the  Act,  the  learned  judge  answers 
them  fully. 

The  general  scheme  of  the  Act  is  set  out,  and  it  is  held, 
citing  the  opinion  of  Justices,  138  Mass.,  601;  Rogers  v. 
Common  Council  of  Buffalo,  123  N.  Y.,  173,  and  Chittenden 
V.  Wursier,  152  N.  Y.,  345,  that  it  is  entirely  within  the 
power  of  the  Legislature  to  provide  for  the  filliug'of  public 
offices  and  positions  according  to  merit  and  fitness,  to  be 
ascertained  by  competitive  examination;  to  provide  for  the 
removal  of  such  appointees,  and  to  provide  penalties  for  the 
violation  of  the  provisions  of  an  Act  drawn  upon  these  lines. 

Tlie  point  made  that  the  Act  is  unconstitutional  because  it 
delegates  to  Civil  Service  Commissioners  the  exercise  of  judi- 
cial functions,  is  also  investigated  and  denied.  The  case  of 
Interstate  Commerce  Commission  v.  Brimson,  154  U.  S.,  447, 
is  cited  by  the  Court  as  being  in  point,  and  is  followed  on  this 
branch  of  the  case. 

It  was  contended  also,  by  counsel  for  Kipley,  that  Section 
12  of  the  Act,  which  provides  for  a  trial  of  charges  against 
appointees  by  the  Commission,  removal  to  follow  a  conviction, 
is  a  violation  of  the  constitutional  right  of  trial  by  jury,  on 
the  theory  that  a  public  office  with  its  emoluments  is  the  prop- 
erty of  the  office  holder,  and  that  no  man  can  be  deprived  of 
his  property  without  a  jury  trial.  The  Court  recognizes  this 
as  the  usual  claim  of  a  spoilsman,  and  disposes  of  it  in  vigor- 
ous and  trenchant  language. 

To  the  objection  that  the  Act  is  unconstitutionaK  as  Ix'ing 
special  legislation,  the  Court  nay  the  contention  is  witliout 
force. 

To  the  objection  that  th*'   Act   is   inicoiiKtitntiunal,  l)ocanso 


12 

ill  Section  35  it  is  provided  that  if  any  person  shall  be  con- 
victed under  the  next  preceding  section,  his  ofHce  shall,  by 
force  of  such  previous  conviction,  be  rendered  vacant,  and 
such  person  shall  be  incapable  of  holding  ofl&ce  for  a  period 
of  five  years,  the  Court,  on  technical  grounds,  is  inclined  to 
sustain  counsel  for  Kipley,  but  takes  all  force  from  the  hold- 
ing by  saying  that  that  portion  of  the  Act  may  be  void  and 
all  the  rest  remain  in  full  force  and  effect. 

Having  thus,  with  painstaking  effort,  disposed  of  all  the 
so-called  constitutional  objections,  the  Court  then  passes  to  a 
discussion  of  what  is  meant  by  "  heads  of  any  principal 
department,''  as  contained  in  Section  11,  the  exemptiug  sec- 
tion of  the  Act.  A  careful  argument  is  made  on  this  branch 
of  the  case  in  the  opinion,  and  the  deduction  drawn  that  the 
phrase  means  the  head  or  heads  of  the  six  principal  depart- 
ments in  the  City  of  Chicago  as  they  existed  by  virtue  of  the 
City  and  Villages  Act  and  the  ordinances  in  force  at  the 
time  of  the  adoption  of  the  Civil  Service  Act  by  the  City  of 
Chicago.  As  those  ordinances  existed  at  that  time  there  was 
but  one  head  to  each  of  the  several  departments,  and  the  Court 
holds  that  "heads  of  any  principal  department"  means  the 
single  heads  of  each  department,  and  its  meaning  is  not  to  be 
extended  by  construction. 

On  this  point  Mr.  Justice  Phillips  and  Mr.  Justice  Boggs 
dissent. 

,  The  ordinance  of  June  28th,  1897,  known  as  the  Powers' 
ordinance  above  spoken  of,  and  which  was  intended,  so  far  as 
the  Council  had  power  to  do  so,  to  emasculate  the  Civil  Service 
Act,  is  handled  without  gloves.  It  is  said  to  be  "  in  the 
teeth  of  the  Act."     It  is  said  that  ordinances  "  must  be  reason- 


13 

able  in  order  to  be  valid,  and  that  they  must  spring  from  an 
honest  exercise  of  legislative  discretion."'  To  permit  the  City 
Council  to  pass  such  an  ordinance  would  be  to  place  the  Civil 
Service  Act  at  the  mercy  of  the  spoilsman.  The  ordinance  is 
held  invalid. 

Finally  the  Court  disposes  briefly  of  the  technical  objec- 
tions, made  by  Counsel  for  the  Commissioners,  to  the  suffi- 
ciency of  the  petitions;  and  it  is  held  that  they  set  forth  a  clear 
right  on  the  part  of  the  relator  to  have  the  act  performed,  and 
a  plain  duty  on  the  part  of  the  respondents  to  act  in  the  prem- 
ises. 

Accordingly  it  is  ordered  that  the  writ  of  mandamus  issue 
to  the  respondents,  to  the  Superintendent  of  Police  to  give  the 
notice,  and  to  the  Commissioners  to  make  the  certification,  as 
prayed  in  the  petition. 

In  the  case  against  the  Commissioners,  the  opinion  is 
brief,  referring  to  the  Kipley  case  as  containing  the  views  of 
the  Court;  overruling  the  technical  objections  to  the  form  of 
the  pleadings,  and  ordering  the  writ  to  issue. 

Thus  was  fought  one  of  the  most  important  battles  of  the 
new  crusade.  Never  was  victory  more  complete,  and  in  spite  of 
vilification  from  spoilsmen,  condemnation  by  [)seudo  friends 
of  reform  and  half-hearted  support  of  timid  souls,  these 
are  the  results: 

1.  The  law  has  been  sustained.  The  Civil  Service  merit 
system  has  its  place  in  the  fundamental  law. 

2.  The  law  is  to  be  read  and  interpreted  according  to  its 
plain  intent  and  meaning,  and  not  in  momentary  impulses 
based  upon  short-sightedness  or  specious  argument  of  8j)oil8- 


14 

meu,  improperly  denominated  "policy."     The   Mayor  cannot 
molest,  and  the  Council  cannot  make  afraid. 

3.  When  now  a  candidate  announces  himself  in  favor  of 
Civil  Service  the  public  will  be  able  to  hold  him,  measurably, 
at  least,  to  his  promises. 


15 


THE  FUTURE. 


It  will  be  well  for  city  disbursiug  officers  to  study  the  pro- 
hibitory features  of  the  law. 

It  is  evident  that  the  popular  pulse  beats  for  the  law,  and 
that  for  either  party  it  would  be  good  policy,  if  only  from  a 
party  view,  to  support  it  heartily,  sincerely  and  with  vigor. 

It  is  believed  that  if  the  law  shall  be  enforced  many  obsta- 
cles will  disappear.  They  have  been  fostered  by  enemies  of 
the  law  and  exist  in  the  minds  of  timid  friends  only. 

Insincere  and  insufficient  administration  will  surely  be 
found  out  and  the  responsible  party  or  persons  made  to  suffer. 

It  is  proper  to  state  that  counsel  both  for  Kipley  and  the 
Civil  Service  Commission,  although  the  latter,  according  to 
newspaper  accounts,  have  professed  to  be  satisfied  with  and 
even  claimed  to  have  been  the  main  instruments  in  bringing 
about  the  results,  have  filed  with  the  Clerk  of  the  Supreme 
Court  notices  of  intention  to  apply  for  a  rehearing. 

The  petitions  will  be  considered  at  the  February  tern),  but 
there  should  seem  to  be  no  doubt  but  that  rehearings  will  be 
<lenied. 


.'J(irj.'J9H 


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